Contest A Will

Contesting a will is where an individual challenges the provisions of a deceased person’s will. This challenge can be based on various grounds, including the belief that the will does not accurately reflect the deceased’s intentions, that the challenger has been unfairly left out or inadequately provided for, or that there are issues concerning the will’s validity.

Not everyone can contest a will. Australian law specifies who is eligible to bring forward such a challenge. Generally, this includes:

• The deceased’s spouse or domestic partner,
• The deceased’s children, including adopted and sometimes stepchildren,
• A person who was financially dependent on the deceased at the time of their death.

These definitions aim to ensure that those with a legitimate expectation of provision from the estate can contest the will if they believe they have been unfairly treated.

There are several grounds on which a will can be contested:

1. Lack of Adequate Provision: If an eligible person believes that the will did not make adequate provision for their maintenance and support, they can contest it. This involves demonstrating their financial needs and arguing that the will fails to appropriately meet them.
2. Validity Concerns: Questions about the will’s legitimacy can also be grounds for contestation. This could be because it’s believed the deceased did not have the mental capacity to make a will, there was undue influence, or the will presented is not the last will made by the deceased.

There are also specific time limits within which a will must be contested. Generally, notice of an intention to contest must be given to the executor within six months of the date of death. Failure to notify within this period could see the estate distributed according to the terms of the will, potentially leaving no assets to claim against.

It’s crucial to distinguish between contesting a will and challenging its validity. Contesting typically revolves around the adequacy of provision made for certain individuals, while challenges to a will’s validity question whether the document accurately reflects the deceased’s intentions due to issues like capacity or undue influence.

The costs of contesting a will are generally at the court’s discretion. However, it is common for the estate to cover the applicant’s legal costs if the contestation leads to a provision being made. Conversely, if the contestation is unsuccessful, the court may order the applicant to cover the legal costs incurred by the estate in defending the will.

To begin the process of contesting a will, you should retain the services of a lawyer, particularly for more complex cases, but it is a good idea regardless. These services can be retained for a fee, ranging from a few thousand dollars to much, much more. Before you begin to contest a Will, ask yourself, honestly, whether you actually want to go through this process. It can be long, arduous and stressful.

If the answer is yes, then once you have retained a lawyer who has decided that your case has merit, you begin by signing an obligation certification; agreeing to provide the Court with a list of legal obligations that they ask of you. These obligations can include: acting honestly at all times, taking further steps to resolve the dispute outside of court, not to claim without proper basis, not to lie or mislead, etc.

After this, an Originating Motion is filed with the Court, letting them know that you plan to begin proceedings of contesting the Will. We will also notify the opposing side of the claim that we plan to file a contest, as well as the Executor of the Will.

Gathering and Signing Affidavits
Once the motion has been filed with the court, the next step in the process is to gather sworn affidavits from yourself, the claimant, and all other parties involved in the Will. This is your opportunity to present your case to the other side about why you believe should have been entitled to something you were not in the Will, or you are entitled to more than the percentage allotted in the Will.

These also include your relationship with the deceased, on what basis the deceased owed a responsibility to make a provision for you in the Will, the extent of the deceased’s estate, as well as your own financial position and the financial position of other beneficiaries insofar as your knowledge allows.

Mediation, Instead of Court
In general, most (if not all) parties to a Will contest, prefer to settle the matter in mediation, rather than proceeding with a court hearing and associated costs, time, stress, etc. Our goal is to achieve your objectives with mediation, rather than a court proceeding. These meetings are confidential and presided over by a private mediator or a Court Registrar. Mediation can take a few days or weeks, depending on the nature of the case.

After mediation, each party will go into separate rooms and make their offers to settle the estate, through each other’s lawyers. If a solution is reached at this stage, an agreement is written down and signed by both parties, concluding proceedings. If not, a court is the next step.

At AJB Stevens, we do our best to settle the contesting of Wills with mediation, rather than in court. However, we understand that isn’t always possible and our job is to represent you and your interests in the Will. We’ll do this to the best of our ability to obtain your desired result.

There are many reasons why a person might want to contest a Will. The main reasons include being left out of a Will or if a person has been unfairly provided for. If you believe this has happened to you or a loved one, then seek legal help as soon as possible.

Your legal team will help you establish:

• if you are eligible to lodge a ‘family provision’ claim
• If there might be other grounds to challenge the Will
• If the deceased was incapable in some way of making a valid Will
• If the deceased was pressured or threatened to sign a Will

Before you begin contesting a Will, it’s important to know whether you’re eligible to do so. Only ‘eligible persons’ may do so, so find out if you’re one of them before you begin.

The Family Provision Act of 1970 dictates that the following people are considered ‘eligible persons’ to contest a Will:

• A child or step-child of the deceased.
• A parent or step-parent of the deceased.
• A sibling of the deceased.
• The spouse or partner of the deceased. Or, in the case of a property settlement application, a former spouse or partner.
• A person who was, at any particular time, wholly or partly dependent on the deceased.
• A member of the deceased’s household at the time of their death, or at any particular time.
• A grandchild of the deceased.
• A person who was in a close personal relationship with the individual at the time of their death.
• A designated person, named in the Will by the Will maker.

If you meet any of these criteria, you may be eligible to contest a Will. Your next steps should be to locate documentation (text messages, emails, written letters or notes, etc) that supports the intent of the deceased for you. Gather as much supporting documentation as you can find. In the absence of supporting documentation, your chances may be very slim of a positive result due to a lack of direct evidence.

Or, in a case where the deceased has not made an appropriate provision for you in their Will, you must demonstrate why and how the creation of such a provision would be of physical, psychological and financial assistance to you. For example, without creating a provision, you could be left without a home, or in severe financial destitution. Alternatively, if you are challenging the creation of the Will or the amount received by a particular party, you must demonstrate that the deceased would not ordinarily have left such an amount of money or property to the other party without allocating an equal or greater amount for you.

At AJB Stevens, we understand that contesting a Will is never the most desirable of methods, it is difficult on all parties involved, particularly if it concerns direct family members. However, our objective is to ensure that we represent your interests fairly and work towards your goals with respect for all parties involved and the wishes of the deceased.

That said, contesting a will can be a financially costly and stressful experience. Decide whether your perceived benefit from contesting the Will is enough to mitigate the stress and anxiety you may feel or the financial burden you may incur, even in the case of a successful challenge.

No. You cannot make a claim for ‘family provision’ under the Succession Act 2006 (NSW). However, you are still eligible to ‘challenge’ the Will by claiming it is invalid by virtue of fraud, undue influence, mental incapacity or some other reason.

Australian Law allows for people to contest a Will within specific timeframes. These vary by state. For example:

• In Queensland, under the Succession Act 1981, the executor of the Will must be notified in writing of contestation, within six months of the death of the Will maker.
• In Victoria, under the Administration and Probate Act 1958, a claimant has six months to contest a Will from the date that probate is granted. Following the expiry of that timeline, you must appeal to the Court. A court will usually only approve a contestation if the claimant can prove that their late claim won’t harm the beneficiaries or prejudice the Estate.
• In New South Wales, the Succession Act 2006 gives a claimant twelve months from the date of death of the testator to file a contest of the Will.
• In the Northern Territory, family members or other designated persons have 12 months from the date of the Probate Grant.
• In South Australia, a Family Provision Claim can be made under the Family Provision Act, within six months of the date of the Grant of Probate.
• In Western Australia, you have six months to contest under section 63 of the Administration Act 1903.
• In the ACT, the Family Provision Act 1969 stipulates that the time limit to contest a will is six months from the date that probate was granted.
• In Tasmania, the claim must be filed within three months after the date of Grant of Probate or Letters of Administration

How Long Does it Take to Contest a Will?

The timeline for contesting a will varies significantly depending on the number of contestants of the Will (if there are more than one), the specific grievances filed with the contents of the Will and the Court Schedule. Timelines are difficult to give, as contesting Wills are case-by-case, but a general timeline is between 12 and 24 months for the case to go before the court.

Delays are common in these proceedings. For example, there could be obtaining a particular set of documents from the other side as part of the affidavit gathering process, or we could need to obtain permission from the Australian Government or healthcare sector to access healthcare records, in the case of a question of mental competency of the deceased in the creation of their Will.

If you feel as though you may have a claim to an inheritance or other part of a Will of a deceased relative hasn’t been assigned within a Will, or if you believe that the Will was improperly drafted and signed, or that the provisions made within the Will were done so to the advantage of a single party to the Will over and above everyone else, you should begin the process of contesting the Will.

AJB Stevens has the experience and knowledge to deal with contesting a Will fairly and respectfully to all parties involved. We work tirelessly to get you what you feel you deserve from a Will and/or correct any improper action by parties in the Will.

In your application to the Court, you may make submissions as to which aspects of the estate (such as particular items) would satisfy your application, and the Court has a broad discretion to determine which elements of the estate are distributed to whom.

This depends on a range of factors. If your claim is successful, it is possible that the costs will be paid out of the estate, but it is not guaranteed. For more information on payment for fees, get in touch with us.

Unfortunately, not every claim against a Will is successful. What should you do if this happens to you? What are your options if your claim is unsuccessful?

Your first obligation in the case of an unsuccessful claim (unless you have a no-win, no-fee clause with your lawyer) is to pay your lawyer for their services. That amount is usually due within a specific timeframe outlined in your retainer document. Even if you wish to challenge the ruling by taking the matter to a higher court, you may still be required to pay your lawyer in full.

What Could Cause a Claim to be Unsuccessful?

There are a few reasons why a claim may be unsuccessful. These could include:

• Insufficient evidence is presented to support the relationship between the claimant and the deceased person. .
• The claimant provides insufficient evidence of financial, physical or psychological hardship that would be endured were the claim to be approved.
• The claimant fails to provide written documentation wherein their claim is supported by the written wishes of the deceased in a manner that suggests the deceased was of sound mind and ability at the time of writing.
• The claimant lies or provides misleading information to the court.
• The claimant is not considered an ‘eligible person’ under the law.
• The claimant fails to adequately prove that the deceased was not clear-headed at the time of writing the Will.
• The claimant withdraws their claim.
• A claimant waits until after the cut-off date to fill a contest against the Will. In New South Wales, this is 12 months after the date of death of the Will maker. These timelines vary by state and territory.

As claims like these can be difficult to sort through, give us a call if you think you may have a case to contest a Will. We’ll tell you whether we think you have enough evidence to proceed.

It’s also important to note that if you disagree with the ruling, you can appeal the ruling of a court regarding your claim by taking the matter to a higher court, either the Federal Court or the Full Court of the Federal Court of Australia. However, it’s worth noting that the Court does not have to hear your case, nor does your previously-retained lawyer have to take the case up with the higher court.

You have 28 days after the ruling to launch your appeal. This includes possibly hiring a new lawyer, having them review the case and the written ruling of the Family Court and deciding whether there is merit in launching an appeal. You can launch an appeal on your own, although this is not recommended.

At AJB Stevens, we recommend examining your claim honestly and thoroughly, as well as consulting with us before contesting a Will, or launching an appeal against a decision.

As long as you are (a), an eligible person and (b), you have made the claim that the Will does not provide sufficiently for the “maintenance, education or advancement in life of the eligible person”, the Court may make an order for family provision and will take into account the following factors:

• the relationship between the applicant and the deceased, including the nature and duration of the relationship
• the nature and extent of any obligations the deceased owed to the applicant, to any other person in respect of whom an application has been made for a family provision order, or to any beneficiary of the estate
• the nature and extent of the deceased’s estate
• the financial resources (including earning capacity) and financial needs, both present and future, of the applicant
• if the applicant is cohabiting with another person—the financial circumstances of the other person
• any physical, intellectual or mental disability of the applicant
• the age of the applicant
• any contribution (whether financial or otherwise) by the applicant to the estate of the deceased, or to the welfare of them or their family
• any provision made for the applicant by the deceased, either during the deceased person’s lifetime or made from the deceased’s estate
• any evidence of the intentions of the deceased, including evidence of statements made by the deceased person
• whether the applicant was being maintained by the deceased before their death
• whether any other person is liable to support the applicant
• the character and conduct of the applicant before and after the date of the death of the deceased
• the conduct of any other person before and after the date of the death of the deceased
• any relevant Aboriginal or Torres Strait Islander customary law
• any other matter, the Court considers relevant, including matters in existence at the time of the deceased’s death or at the time the application is being considered.

This depends on a lot of factors. It may take between 1-3 years, however, the AJB Stevens team will be able to give you more of an idea during your consultation.

Yes. As long as the beneficiary is an ‘eligible person’. This is quite common where beneficiaries do not consider that the Will provided adequate provision for them.

Sometimes. The law considers as an ‘eligible person’ for bringing such a claim, those who “at any particular time, wholly or partly dependent on” the deceased. So, if a parent was dependent on a child, then they may be eligible to make a family provision claim.

Yes. Though this may make your claim more difficult. If you wish to contest a Will, it is important to notify the Executor as soon as possible to prevent the estate from being distributed.

Yes. If you consider that the Will does not fairly provide for you and you meet eligibility criteria as defined in the law.

The amount that you will receive will depend on your circumstances, the circumstances of the estate and anyone else who may be entitled to provision.

The court will only make an order for provision out of the estate where the court judges that it ought to be made for the “maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.” This is a discretionary exercise and the court does not have to make an order or order any particular amount.

Yes. Where there is no Will, the situation is called ‘intestacy’ and is governed by ‘intestacy rules’ set out in the Succession Act 2006 (NSW). Under section 59(1) of that Act, you can contest the amount that you would be awarded under the intestacy rules under section 59(1) of that Act.

When you work with AJB Stevens, the Family Law process could not be easier. Our top lawyers will assess your situation to ensure that you have a solid case. From here, we will look further into your situation, taking care to ensure we have all the information we need. Once all information is gathered, we will work to get you what you deserve, through negotiations. If negotiations do not work, then we will help you through the Court process.